The Cantons are left quite free to organize their courts as they

please; justice, in general terms, being administered by the Canton

with recourse in specified cases to the Federal Tribunal. The cantonal

judicial organization presents two well-defined courts: the district

courts (_Bezirksgerichte_ or _Amtsgerichte_), which are courts of

first instance; and a supreme or appellate court (_Obergericht_ or

_Appellationsgericht_), which is the court of final instance. Some

of the Cantons have justices of the peace; these are elected by the

Communes for a term of six years, and have jurisdiction up to fifty

francs. Either party to a suit, or the justice, may demand that

two jurors elected by the casting of lots be summoned to assist in

the trial. For the hearing of criminal cases, there is a trial in

a few Cantons by a jury under the presidency of a section of the

supreme-court justices, but in the others a special criminal court

acts without a jury. In three of the large Cantons, Geneva, Zurich,

and St. Gallen, there are special _Cassation_ courts put above

the _Obergericht_. Zurich and Geneva have also special commercial

courts (_Handelsgerichte_). In many of the Cantons the supreme court

exercises certain semi-executive functions, taking the place of a

ministry of justice, in overseeing the action of the lower courts, and

of all judicial officers, such as the states-attorneys. The courts

make annual reports to the legislative council, containing a full

review of the judicial business of each year, discussing the state of

justice, with criticisms upon the system in vogue, and suggestions of

reform. These reports are important sources of judicial statistics.

The terms of cantonal judges vary from three to four and six years.

The judges of the inferior courts are elected directly by the people;

those of the supreme courts by the legislative council. In Bern the

legislative council also elects the presidents of the district courts.

No qualification for election to the bench is required except that of

being an “active citizen.” But invariably, to the higher courts at

least, competent lawyers are chosen; and re-election is the rule. The

district courts render final judgments on claims from fifty to two

hundred francs. Either party to the suit has the right to demand that

two district judges preside as associate judges. The district courts,

consisting of a president and four judges, decide as of first resort,

and the appellate chambers of the supreme court, as of second and final

resort, all claims exceeding two hundred francs. The commercial court

decides finally all claims exceeding five hundred francs, provided

the defendant is entered in the commercial register. In proceedings

before the district and commercial courts the claim is first submitted

to a justice acting as _propitiator_; he summons the parties for the

purpose of effecting an amicable adjustment of their difficulties; if

no agreement can be reached, a lawsuit permit is issued by the justice

and handed to the plaintiff, which he in turn presents to the court. In

a majority of cases the court proceedings are oral; only in exceptional

cases, involving difficult and novel questions or intricate accounts,

an order will be made for written preparatory proceedings. After the

court hears an oral statement of the claim and the defence, it decides

whether further evidence shall be produced, and issues an order setting

forth what must be established by each party in the form of written

testimony; and this must be presented to the court in an accurate and

carefully-prepared form. The judgment of the court is first rendered

orally, and written notice of the same given to the parties. When an

appeal lies, it must be taken within ten days from the receipt of the

above notice. In all cases the plaintiff must make a deposit to cover

the costs, but the costs are to be finally paid by the party cast in

the suit.

Under the constitutional provision, that final civil judgments rendered

in one Canton are executory in any other Canton, sometimes a question

arises as to the obligation of one Canton to carry out the decree of

the court of another Canton. This question must be referred for final

decision to the federal authorities. In only one Canton, that of Uri,

is there a departure from the federal system, and there the cantonal

courts have the power to declare invalid a cantonal legislative

enactment.

Trial by jury, even for felony, does not universally exist in the

Cantons. The substitution of a tribunal or judicial body instead of

the unitary system, though claimed to be almost tantamount, is far

from fulfilling the essential purpose of a jury. Knowledge, skill,

and strict impartiality belong to the judge; common sense and common

feelings to private individuals on a jury. The judge is deaf, blind,

and inexorable, and knows only the law; the jury is under the influence

of public opinion, or even of public prejudices, which must not be

overlooked altogether, and for the sake of the law itself, of peace

and good government. The jury is, in fact, a legislative as well as a

judicial power, negatively at least, for deciding on law as well as

on fact; they may and do silence the law when they please. Unforeseen

cases occur sometimes where an undue advantage is taken of the law.

The jury may suspend, in fact, its application until it is altered; in

other cases, less uncommon, the strict application of the law would be

directly in opposition to public feelings and prejudices, to the extent

of threatening popular violence and revolution. A judge cannot make the

law bend to circumstances; government cannot yield without disclosing

weakness and encouraging the factious; but the jury, being supposed to

participate in these public feelings, may preserve the peace without

disgrace, by a sort of innocent denial of justice. A jury of judges,

as the silent part of the bench may be deemed, cannot be ignorant of

the law, and would make themselves gratuitously contemptible if they

pretended to participate in the feelings of the multitude. Besides

the obvious use of juries as a check on judiciary proceedings for the

safety of individuals, the institution is of high political importance.

It is one of the hidden springs upon which the cumbrous machine of

society is, as it were, suspended, and enabled thereby to sustain

accidental shocks without coming to pieces.

There was abundant justification in the early cantonal criminal

codes for the abolition, by the federal constitution, of capital

punishment[48] and corporal pains. Many of the codes were not

distinguished for justice, gentleness, or rationality. Nowhere were

witches more relentlessly pursued than in some of the Cantons of

Switzerland. The laws denouncing them were of Draconian severity. Stern

were the ordinances and strange the customs of the older Cantons.

In 1666 an entire family, mother, son, and daughter, were burned in

Unterwalden for practising forbidden arts. No less than one hundred

and fifty individuals were executed at Geneva, in a period of fifty

years, during the seventeenth century, for the capital offence of

witchcraft, denominated _lèse-majesté divine au plus haut chef_. The

last execution for sorcery was in Glarus in 1782. So late as 1824 a man

was racked in Zug, and in the archives of Obwald appears an entry, in

1840, of a payment of thirty francs to the executioner for beating a

prisoner, who had proved refractory under examination, with rods, in

the torture-chamber. The Swiss historian Müller relates that one Sak,

at Bern, was sentenced to be whipped, and led out of the gate by the

executioner, for returning from banishment, and if he returned again

he should be drowned; also Hanns, the public executioner of Bern, was

banished two miles from the jurisdiction of the town for having spoken

immodestly to respectable men and women, and if he returned he should

have his eyes put out. An inn-keeper of Bern, having procured the

seal of a councillor who lodged at his house, made use of it to forge

obligations for sums of money which, supported by false witnesses, he

claimed after an interval of several years; the fraud being discovered,

he was broken upon the wheel, and the witnesses “boiled in a kettle.”

In Zurich, any one clipping the coin, had his fingers clipped off, and

was then hanged. In the council-room of the old Rathhaus of Appenzell

can still be seen an instrument known as the “bocksfutter”; it consists

of a long bench, on which delinquents, ordered to be punished with

stripes, and prisoners, who were obstinate about admitting their

guilt, were wont to be placed, with legs and arms outstretched as if

they were going to swim; but every attempt to move these members was

prevented by enclosing them in iron clamps firmly fastened to the

bench; this preliminary completed, the executioner was called in,

and ordered to give the victim as many strokes with “_ochsenziemer_”

on the bare body, as the judges might think necessary, to loosen his

tongue or purge him of his offence. Another so-called truth-finder

(_wahrheitserforschungsmittel_) was a cage, in which one could neither

stand upright nor stretch his legs, but only cower on the floor in a

constrained position. At Freiburg the punishment for stealing five

sous was death by decapitation; and a stranger striking a burgher was

fastened to a post and scalped, while a burgher striking a stranger

paid three sous. Capital punishment was inflicted by cutting off the

head, which was done in this manner: the culprit was made fast in an

arm-chair, and a cap placed on his head with a hole in the top, by

which an assistant took hold of his hair, while the executioner, placed

behind, struck off his head with a broadsword.

There is little or nothing in the Swiss cantonal institutions to

tempt unworthy men into official life. The salaries are nominal, with

very remote chances for any personal aggrandizement. In the local and

municipal administrations, it is difficult, if not impossible, for any

one class to employ the powers of government for purely selfish ends.

Many of the officials serve the Canton, municipality, and community

with motives as honorable as their services are intelligent and

efficient. The Cantons and communities are comparatively free from

debt, and not burdened by excessive taxes. There is a general aversion

to incurring public debts, common to the Swiss, from the federal head

down through the cantonal, municipal, and community administrations.

The revenues of these little states are small, and require strict

economy in every branch of expenditure. Nothing is wasted on useless

consumers and their retainers; an exact account must be rendered of

the employment of the public funds; and precision and publicity in the

keeping of public accounts. The people yields its servants, indeed,

some compensation, but it does not reward them with pensions or with

superabundant influence. It builds up no official class who forget

their citizenship and separate themselves from the mass of the people,

squeezing as many advantages as possible out of their offices, even

to the prejudice of efficient service. The Cantons, upon enumeration,

number not twenty-two but twenty-five, because three of them have

been divided into half-Cantons, making nineteen whole and six half

Cantons. Basel is divided into Basel-Stadt and Basel-Landschaft (urban

and rural); Appenzell, into Ausser-Rhoden and Inner-Rhoden; and

Unterwalden, into Obwald and Nidwald (above and below the forests

which formed the boundary between them). The rending of these Cantons

into half-Cantons was the work of party feuds; in one place springing

from political causes, in a second from religious strife, and in the

third from wrangles about wood and grass. Unterwalden was divided

as early as 1366. The division of Appenzell occurred in 1597; the

Catholic magistrates having turned out some Protestant ministers,

so serious a quarrel ensued between the two communions, that other

Cantons were called in as mediators; to restore peace they resorted to

a sort of political divorcement; the Canton was divided between the

two parties, and a river marked the boundary; the Catholics passed

on one side and the Protestants on the other, selling or exchanging

reciprocally their fields and houses. The separation in Basel took

place in February, 1832; the city of Basel maintained that the country

people should either accept the constitution which pronounced them

dependent and inferior, or renounce all connection with her: in vain

the Diet protested against this division, but the city persisted in

the separation rather than put itself on a level with the peasants.

Only in one case, that of Basel, was the division accompanied by any

violence. There is not a great difference between the population of the

halves in the Cantons of Basel and Unterwalden; the urban half, of the

former, having an excess of 12,000, and Obwald, of the latter, 3000;

but the population of Ausser-Rhoden is four and a half times that of

Inner-Rhoden. There is a wide diversity in the area of these several

half-Cantons, not easily accounted for, except in the case of Basel,

where one-half is composed of the city of Basel. Each half-Canton

keeps its own share of sovereign power; each is practically complete

in its state autonomy, the original cantonal integral having little

recognition beyond the representation in the Council of States. In

that body the members from these half-Cantons display, more or less,

the antagonism which originally led to the division of their Cantons;

Catholic Appenzell is almost certain to oppose Protestant Appenzell; so

with all of the members from the fractional Cantons, they are arrayed

on different sides of all local questions, seriously impairing their

influence. In extent, population, and wealth, the Cantons are about

equal to a county; still, each is one of the twenty-two confederate

states. The official order of the Cantons corresponds with the

historical date of their entry into the Confederation, except that

Zurich, Bern, and Luzern, after joining the league of small Cantons,

were placed at the head. Uri occupies the first place in chronological

order, and anciently Luzern took the lead, but when Zurich entered

the Confederation, as an imperial city, in 1351, it displaced Luzern

by virtue of its great wealth; and two years later Bern joined the

league, and was awarded the second place on account of its military

power. The standards of the three original Cantons are very suggestive

of their history. The one of Uri represents a bull’s head, with the

broken links of the yoke hanging around the neck; that of Schwyz a

cross, the double symbol of suffering and deliverance; and the banner

of Unterwalden bears two keys, symbolical of the keys of the apostle

St. Peter, and destined to open the iron gates of their long slavery.

Emile de Laveleye, in his “Primitive Property,” gives the following

touching legend as to the method in which the boundary between the

_Marks_ or Communes of Uri and Glarus was formerly fixed: “The two

Cantons are separated by frozen peaks and a lofty chain of mountains

everywhere except at the Klaussen passage, through which one can easily

pass from the valley of the Linth to that of the Reuss. In times past,

there were disputes and struggles between the people of Uri and Glarus

as to the debatable boundary of their pastures. To decide the question,

they agreed that, on St. George’s day, a runner should start at the

first cock-crow from the bottom of each valley, and that the frontier

should be fixed at the point where they met. The start was to be

superintended by inhabitants of Glarus at Altdorf, and by inhabitants

of Uri at Glarus. The people of Glarus fed the cock, which was to give

the signal to their runner, as much as possible, hoping that, being in

full vigor, it would crow early in the morning. The people of Uri, on

the contrary, starved their cock; hunger kept it awake, and it gave

the signal for the start long before dawn. The runner started from

Altdorf, entered the _Schaechenthal_, crossed the top, and began to

descend on the other side towards Linth. The Glarus cock crowed so

late that their runner met the one from Uri far down the slope on his

side. Desperate at the thought of the disgrace which would be reflected

on his countrymen, he begged earnestly for a more equitable boundary.

‘Hearken,’ answered the other, ‘I will grant you as much land as you

can cross, ascending the mountain with me on your back.’ The bargain

was struck. The Glarus man ascended as far as he could, when he fell

dead from fatigue on the banks of the stream called _Scheidbaechli_

(the boundary line). This is why Urner Boden, situated on the slope

facing Glarus, beyond the division of the water, belongs to Uri. It is

a curious legend in which, as so often in Swiss history, the citizen

gives his life for the good of his country.”

Individual Cantons have a national character, either because all

their inhabitants belong to one people, as in the German Cantons

of northern and eastern Switzerland, or in the French Cantons of

western Switzerland, or in Italian Ticino; or because one nationality

decidedly prevails, as the Germans in Bern and Graubünden, and the

French in Freiburg and Valais. The result of holding different

peoples together without transforming them into one nationality has

been attained only by allowing each people free course in its local

and inner life. The drift of Switzerland’s history and its political

trend are unquestionably towards a more compact nationality. The

constitution was a compromise between the advocates and opponents of

nationalism. Every change from 1814 down to 1874 has taken something

from the Canton and Commune and bestowed it on the Confederation.

In every stage of its historical growth it has been a fight of the

Confederation against the Canton, on behalf of general rights; those

interests of the citizen which are claimed to lie beyond the proper

sphere of local laws and customs. The national government has steadily

extended its influence, every step increasing the authority of the

nation at the expense of the cantonal independence; a steady growth

in national feeling, a constant drift towards a stronger federal

government. Many branches of legislation have been taken away from

the Cantons, which under the constitution of the United States

adhere to the States. The federal government has absorbed numerous

matters of social and economic importance, such as those relating

to railways, telegraph, factories, insurance, debts, marriage, the

law of contract, and general measures of sanitary precaution. “Swiss

democratic federalism tends towards unitarianism. This is no doubt

in part due to the desire to strengthen the nation against foreign

attack. It is also due, perhaps, to another circumstance. Federalism,

as it defines and therefore limits the power of each department of the

administration, is unfavorable for the interference or to the activity

of government. Hence a federal government can hardly render service

to the nation by undertaking for the national benefit functions which

may be performed by individuals.”[49] Wherever in the history of the

world we find a federation having an internal organization sufficiently

strong to maintain its own existence, we observe an inevitable drift of

power from the several states to the central government, striving to

ascertain over how broad a field it is expedient and right to extend

the activities of government. Yet it is impossible to study attentively

the march of Swiss affairs without seeing that what really lie next to

the hearts of the people are their cantonal and local institutions;

and while a well-assured nationality is kept up, in event of foreign

danger or common peril, nevertheless, the citizens look for protection

as well as for command to their own cantonal authority. A familiar

colloquialism is often used, which illustrates the relation of the

cantonal to the national feeling,--“My shirt is nearer to me than my

coat.”

Switzerland, though not extensive in point of superficial surface,

embraces such an extraordinary variety of climate, soil, race, and

occupation as to render the rule of a single central democratic

government, in an especial manner, vexatious. It must of necessity

adhere to a system of Federal Union in preference to that of a

central and universally diffused authority; because in small states,

having each the power of internal legislation, the interests of the

inhabitants are nearly the same, and their influence can be felt and

their wants receive due consideration.

The Cantons have deep-rooted and peculiar local institutions, in

many cases of great vitality; laws handed down traditionally from

generation to generation, often without having ever been committed to

paper, much less to print. Until 1848 there was not one written and

accepted cantonal constitution. A country where self-government has

longest subsisted, and political institutions been most the subject of

popular discussion and decision, it is at the same time a country in

which innovations are with the most difficulty introduced. You might

alter the whole political frame of government in the French republic

with more facility than you could introduce the most insignificant

change into the customs and fashions of the Swiss democracy. They seem

as immovable as the mountains in which they were cradled. The French

directory, in the ardor of their innovations, proposed to the peasants

of the Forest Cantons a change in their league, and made the offer

of fraternization, which had seduced the allegiance of so many other

states, but these sturdy mountaineers replied, “Words cannot express,

citizen directors, the profound grief which the proposal to accede

to the new Helvetic League has occasioned in these valleys. Other

people may have different inclinations, but we, the descendants of

William Tell, who have preserved, without the slightest alteration, the

constitutions which he has left us, have but one unanimous wish, that

of living under the government which Providence and the courage of our

ancestors have left us.”

The Confederation, in striving to make the general organization more

systematic and uniform, must tenderly regard cantonal susceptibilities.

The Swiss federal organization is firmly founded on cantonal

precedents, traits, and features; and their self-assertive vitality and

their direct influence make them the central subject of Swiss politics.

The federal constitution designates the members of the Confederation

as “sovereign Cantons;” and each of the cantonal constitutions says

in effect, “This, under federal supremacy, is a sovereign Canton,”

and each declares that the sovereignty within the Cantons rests on

“the people as a whole.” “Sovereign state” is conspicuous in the

constitution, federal and cantonal. It expresses national instincts,

national experiences, and political education. All the elevating

memories of national history, all the inspiring traditions which

had bred into national sentiment, generation after generation, were

connected with a league of states of almost insulated independence.

Each Canton has always jealously clung to its own individuality and

ancient customs. Every now and then the republic would be split up into

smaller confederations for the purpose of maintaining the rights of

state sovereignty; by these sectional strifes, the idea of isolation

and individuality was handed on, gaining strength as it went, and

becoming more and more a political instinct of the Swiss people.

Switzerland is a microcosm. In these five and twenty little states we

have a miniature resemblance of all the phases of social and political

life; every Canton contributes with friendly emulation to improve

the domestic policy and strengthen the political relations of the

Confederation; if they present no example worthy to be followed as a

whole, there is still much in their detail that will most abundantly

repay our study.

CHAPTER VII.

THE LANDSGEMEINDE.

In the republics of the ancient world, where representative assemblies

were unknown, legislative power vested with the citizens, the sovereign

power being exercised by the whole people, acting directly in their

own persons. They met in what we should now call primary assemblies.

This early democracy found its most logical expression in the _Comitia_

of Rome and the _Ecclesia_ of Syracuse. The _Ecclesia_ embraced all

citizens over twenty-one years of age, unless they had become liable to

any loss of civic rights; it met so frequently, often once a week, that

it would be inconceivable, if we did not remember that ordinary and

professional labor was carried on not by the free citizens, but by the

numerous slaves. The same plan prevailed in the early Teutonic tribes.

Tacitus describes such an assembly, almost in the words of Homer: “In

matters of inferior moment the chiefs decide; important questions are

reserved for the whole community. When a public meeting is announced,

they never assemble at the stated time; regularity would look like

obedience; to mark their independent spirit, they do not convene at

once, but two or three days are lost in delay. Each man takes his

seat, completely armed. The king or chief of the community opens the

debate; the rest are heard in their turn, according to age, renown in

war, or fame for eloquence. No man dictates to the assembly; he may

persuade, but cannot command. When anything is advanced not agreeable

to the people, they reject it with a general murmur; if the proposition

pleases, they brandish their javelins; this is the highest and most

honorable mark of applause; they assent in a military manner, and

praise by the sound of their arms.”

Montesquieu is of the opinion that, in this treatise on the manners of

the Germans, by Tacitus, an attentive reader may trace the origin of

the British constitution; a system which he claims was found in the

forests of Germany. The Saxon _Witenagemot_ was beyond all doubt an

improved political institution, grafted on the rights exercised by the

people in their own country. The author of the “European Settlements in

America” writes: “The Indians meet in a house, which they have in each

of their towns for the purpose, on every solemn occasion, to receive

ambassadors, to deliver them an answer, to sing their traditionary war

songs, or to commemorate the dead. These councils are public. Here they

propose all such matters as concern the state, which have already been

digested in the secret councils, at which none but the head men assist.”

During the Middle Ages these assemblies died out, and the right of

making laws passed either to the sovereign or to a representative

body; the older method surviving only in some of the Swiss Cantons.

In Uri, in the half-Cantons composing Unterwalden and Appenzell,

and in Glarus, the law-making body is the Landsgemeinde, the free

assembly of all the qualified voters, the _folk-moot_. The whole people

come together to pass laws, to nominate magistrates, to administer

affairs, just as was formerly the case with the Germans of Tacitus

and the Achaians of Homer; with less pretensions, however, than the

assembly of a Greek city, for it is rather an agricultural democracy,

such as Aristotle commended. It is the direct government dreamed of

by Rousseau, who in his dislike of representative systems wrote the

“Contrat Social,” demanding that the entire community should meet

periodically to exercise its sovereignty. Rousseau suggests that he

was led to the opinions advanced in this work, by the example of the

ancient tribal democracies; yet at a later date he declared that he

had the constitution of Geneva before his mind; and he cannot but have

known that the exact method of government which he proposed still lived

in the oldest Cantons of Switzerland; where by the raising of hands

offices and dignities were distributed, and sanction given to the laws;

where feudalism and royalty had never penetrated, and where the most

perfect liberty reigned, without class struggles or social strife. The

assemblies in the Cantons named are called Landsgemeinden,--that is,

“National Communes.” It is a strictly precise term, implying that the

whole country forms, so to say, a single Commune. This was the case

originally. Later, as different villages were formed, they constituted

separate autonomic Communes; but the great Commune of the Canton, with

the General Assembly of all the inhabitants, the Landsgemeinde, was

maintained. Under the Helvetic republic of 1798 the Landsgemeinde was

abolished, in order to make way for the representative system. It was,

however, re-established under Napoleon’s act of mediation, promulgated

in 1803. The sagacity with which the First Consul discriminated the

most important features in the condition of the Swiss Cantons, may be

appreciated by the following extract from the speech he delivered on

the formation of the internal constitution of the Confederacy: “The

re-establishment of the ancient order of things in the democratic

Cantons,” said he, “is the best course which can be adopted, both

for you and me. They are the states whose peculiar form of government

renders them so interesting in the eyes of all Europe; but for this

pure democracy you would exhibit nothing which is not to be found

elsewhere. Beware of extinguishing so remarkable a distinction. I

know well that this democratic system of administration has many

inconveniences; but it is established, it has subsisted for centuries,

it springs from the circumstances, situation, and primitive habits

of the people, from the genius of the place, and cannot with safety

be abandoned. When usage and systematic opinion find themselves in

opposition, the latter must give way. You must never take away from a

democratic society the practical exercise of its privileges. To give

such exercise a direction consistent with the tranquillity of the

state, is the part of true political wisdom.”

Through a strange and happy combination of circumstances this ancient

custom may still be seen in the Cantons of Uri, Unterwalden, Glarus,

and Appenzell. The homely peasants who tend their own cows and goats

upon the mountain-side, and by patient industry raise their little

crops from the narrow patches of soil, hemmed in by rock and glacier,

meet to discuss the affairs of their Canton, to make its laws, and to

swear to observe them; a parliament of Swiss peasants, differing little

in manner or habits from their forefathers of the thirteenth century.

It affords a rare study in politics; an example of pure democracy

such as poets might imagine, and speculative philosophers design.

It was my privilege to have seen one of these primitive assemblies,

held on the hill-side market-place of Trogen, the seat of government

of Appenzell-ausser-Rhoden. Trogen is in the rolling, grassy, breezy

Appenzell Alps, the home of primitive virtue, the stronghold of Swiss

simplicity, honesty, and courage, and the region of light hearts and

merry tongues. It was the first Sunday in May, from which day the

Appenzellers date all the events of the year. Leaving St. Gallen for

Trogen, some seven or eight miles distant, in a carriage, about nine

o’clock in the morning of a bright and beautiful day, the main road

and the many branches that entered it, as far as the eye could reach,

were full of peasants making their way on foot to Trogen; every man

carrying in one hand the family umbrella, and in the other an old sword

or ancient rapier, which, on this occasion the law at once commands

him to carry and forbids him to draw, and which is brought out for

this day only from its dignified seclusion; each one wearing a short

green coat, with a stiff high collar, and a silk hat, both bearing

unmistakable evidence of being venerable heirlooms. The convening of

the Landsgemeinde was announced at twelve o’clock M. by heralds, as

a drum and fife corps, with a wonderful uniform of black and white,

the cantonal colors. There were estimated to be present six to seven

thousand voters. No provision was made for seating them, and all stood

during the proceedings, which lasted nearly three hours. The assembly

opened with a silent prayer, the Landammann setting the example, and

instantaneously the thousands of heads were uncovered and bowed, with

an indistinct but audible wave of sound from the speechless lips; then

a national song in which all joined; the Landammann and his colleagues

of the council mounted a rough platform erected in the centre of the

field, draped with black and white, and with two ancient-looking swords

crossed before it. Close attention was given to the Landammann while he

addressed them as “Trusty, faithful, and well-beloved confederates.” He

submitted a report of the administration of affairs for the past year,

and proposed a few new laws and some amendments to the old laws. These

were five in number, only two of which were accepted, by the raising

of hands, the vote being taken without discussion; though each man had

full right to speak his own mind as long as he pleased. The President,

on behalf of the council, took from a bag, not of silk, but of plain

homespun material, the seal of state and surrendered it into the hands

of those by whom it had been given; and in delivering up this official

charge he concluded with the statement, that he had not voluntarily

injured any one, and asked the pardon of any citizen who might think

himself aggrieved. The President and the members of the council then

retired and took their places as simple citizens in the ranks of their

fellows, leaving the Canton for the time being, without any executive

official, an absolute interregnum. In a few moments some one in the

crowd placed in nomination for re-election the retiring President, and

he was unanimously chosen; the same process was repeated as to all the

other members of the council; they then returned to the platform and

resumed possession of the seal of state. Some subordinate officials

were chosen in a similar manner, all without opposition except in the

case of the _grossweibel_, for which place, owing to some charges of

intemperance against the incumbent, there had arisen quite a contest,

resulting in a half-dozen names being placed in nomination, each one

of whom submitted his claims in a few remarks. The vote was taken for

the several candidates, in turn, by uplifted hands, and the executive

council found it impossible to decide who had received the most

votes, until five trials were had, when the old official was declared

re-elected. Neither the voting nor the result of this unusual contest

was accompanied with the slightest manifestation of feeling. The entire

proceeding was marked by an earnest, serious, reverent decorum, as

could be found in any church service. When the newly-chosen Landammann

enters upon his office, he first binds himself by an oath to obey the

law, and then administers to the multitude before him the same oath.

There was a heart-stirring solemnity in hearing the voice of these

thousands of freemen, beneath the canopy of heaven, in firm, clear

accent, pledging themselves to obey the laws which they themselves had

made. The Landammann’s oath was: “To promote the welfare and honor

of his fatherland, and to preserve it from injury; to enforce the

constitution and laws of his country, to protect, defend, and assist

widows and orphans, as well as all other persons, to the best of his

power, and as the law and his conscience teach him; and that neither

through friendship, enmity, nor bribe, nor for any other reason will he

be moved to deviate therefrom. Likewise that he will accept no gifts

from any prince or lord, except for the public purse.” The people

swear: “To promote the welfare and honor of their fatherland, and to

preserve it from injury, to protect its rights and liberties to the

best of their power, to obey the laws of the magistrates as well as to

defend the council and court, likewise to accept presents, bribes or

gifts from no prince or lord, except for the public purse; and that

every one to whatever position elected shall accept it, and do as well

as he is able and has the power to do.” The foregoing oath, after being

read to the multitude, was sworn to in a loud, distinct voice in the

following form: “We have well understood what has been read to us. We

will keep it truly and steadfastly, faithfully, and without fear, so

truly as we wish and pray that God may help us.” The laws adopted by

the Landsgemeinde of Appenzell in reference to these official oaths are

very peculiar. They bear date 1634, and read: “Because an oath is a

thing through which good law and order must be maintained, so for that

reason it is highly necessary to consider it, in itself, seriously and

well, humbly praying to God, the heavenly Father, that through his Holy

Spirit he may enlighten our hearts, so that we may know what a true

and false oath is, and may in time with the chosen ones live up to it

eternally: Amen! A genuine oath is a considerate and solemn invocation

and declaration to the true God, as the proper guardian of my heart,

to be witness and judge of my sworn declaration or promise, to bless

my body and soul if I swear in truth and sincerity, and if, on the

contrary, I swear falsely, to punish my body and soul. At the same

time every Christian who swears an oath shall lift up three fingers,

by which will be signified the supreme power of God the Father, God

the Son, and God the Holy Ghost; but the two last fingers shall remain

bent back against the hand, and thereby will be represented the entire

submission of soul and body to the supreme power of God. Now the man

who is so forsaken and so hostile to himself as to reject in his heart

what he professes in such a way with his mouth, in the face of the

all-seeing God, swears a false oath. He swears, as if he said, I will

rather be shut out from the community and benefaction of Christendom;

or as if he said, the name of God and of our Saviour Jesus Christ shall

never prove a help and comfort to me at the time when soul and body

shall be separated; or as if he said, the grace of God, the redemption

of Jesus Christ, and the strength of the Holy Ghost shall be entirely

lost and thrown away on me, poor sinner. Finally, whoever swears

falsely speaks as if he said, as I swear false to-day, so do I make

myself guilty of this judgment, that my soul, which is indicated by the

fourth finger, and my body, which is indicated by the fifth finger,

shall be separated from every claim of the All Holy, and be deprived

eternally and forever of the refreshing sight of our Lord Jesus Christ.

Hereby can every Christian perceive and understand what is the meaning

and effect of a false oath, and take heed against it, for the salvation

of the soul. God guard us all eternally and forever from sorrow and

grief: Amen!”

The Landsgemeinde at Uri is attended with much more display and

elaborate ceremonial than that of Appenzell, and a description of it

is here taken from Mr. Freeman’s essay on the “Growth of the English

Constitution:”

“It is one of the opening days of May; it is the morning of Sunday;

for men there deem that the better the day the better the deed; they

deem that the Creator cannot be more truly honored than in using, in

his sphere and in his presence, the highest of the gifts which he has

bestowed on man. From the market-place of Altdorf, the little capital

of the Canton, the procession makes its way to the place of meeting at

Bözlingen. First marches the little army of the Canton, an army whose

weapons never can be used save to drive back an invader from their

lands. Over their heads floats the banner, the bull’s head of Uri, the

ensign which led men to victory on the fields of Sempach and Morgarten.

And before them all, on the shoulders of men clad in a garb of ages

past, are borne the famous horns[50] whose blast struck such dread into

the fearless heart of Charles of Burgundy. Then, with their lictors

before them, come the magistrates of the commonwealth on horseback,

the chief magistrate, the Landammann, with his sword by his side. The

people follow the chiefs whom they have chosen to the place of meeting,

a circle in a green meadow, with a pine forest rising above their head,

and a mighty spur of the mountain-range facing them on the other side

of the valley. The multitude of freemen take their seats around the

chief ruler of the commonwealth, whose term of office comes that day

to an end. The assembly opens; a short space is first given to prayer,

silent prayer, offered up by each man in the temple of God’s own

rearing. Then comes the business of the day. Thus year by year, on some

bright morning of the springtide, the sovereign people, not intrusting

its rights to a few of its own number, but discharging them itself in

the majesty of its corporate person, meets in the open market-place

or in the green meadow at the mountain’s foot, to frame the laws to

which it yields obedience as its own work, to choose rulers whom it can

afford to greet with reverence as drawing their commission from itself.

You may there gaze and feel what none can feel but those who have seen

with their own eyes, what none can feel in its fulness more than once

in a lifetime, the thrill of looking for the first time face to face on

freedom in its purest and most ancient form.”

The Landsgemeinde exercises two equally important functions. First, it

elects the principal officers of the Canton, the Landammann and his

substitute, the treasurer, and the chief of the cantonal militia; it

also appoints the deputies for the Federal Assembly. These cantonal

functionaries are paid but nominally; their duties are light, and the

small claim which they make on the individual causes them to appear

a universal duty of the citizen. It belongs to the Landsgemeinde to

sanction all cantonal laws, and all treaties which are concluded with

other Cantons or with foreign states. With the exception of Glarus,

the legislative power is exercised in this sense, that it accepts or

rejects as a whole the propositions which are made to it, without the

power to introduce changes in them. In Glarus the constitution invests

the Landsgemeinde with power to modify or reject the propositions

which are made to it, or refer them to the triple council finally,

either to report on them or to decide. The constitution of Glarus also

contains this provision: “The people are responsible only to God and

their consciences for the exercise of their sovereignty in the May

Assembly. What must guide the May Assembly is not, however, caprice

without limit and without condition; it is justice and the good of

the state which are alone compatible with it. The people are obliged

to vote according to these principles in taking annually the oath of

the May Assembly.” In all of the Cantons, having these assemblies,

the proposition to be submitted must be made public a certain time in

advance. The administrative power is ordinarily confided to quite a

numerous council, called Rath or Landrath. The functions of this body

are extensive. It watches over the enforcement of the constitution,

federal and cantonal; regulates in their general organization public

instruction, financial, military, and sanitary administration, public

works, charity, except the legal provisions regarding the province

and obligations of inferior authorities; receives the reports of the

administration of all the functionaries of the Canton; deliberates

upon the proposed laws to be presented to the Landsgemeinde, through

the intermediary of the triple council; and watches over the execution

of what the laws or decrees of the Landsgemeinde prescribe to it. In

Nidwald the council has, besides, judicial function. In Glarus, Uri,

and Obwald there have been organized, side by side with the Landrath,

special authorities to which have been transferred all the judicial

functions formerly granted to the Landrath. About the Landrath are

grouped various bodies, evidently formed from it by addition or

reduction. The double and the triple or Great Council are nothing but

the council of the Landrath itself, doubled or tripled by the addition

of new members, whom the territorial divisions appoint in the same

manner and in the same proportion as the first. In Glarus, for example,

each local assembly (_tagwen_) adds two members to the one which it

appoints to form a simple council. Thus the triple council is composed

there of one hundred and seventeen members, as follows:

(1) Of the nine members of the Commission of State.

(2) Of thirty-five members appointed by the _tagwen_ following fixed

proportions.

(3) Of seventy members appointed by the same assemblies, following the

same proportions.

(4) Finally, of three Catholic members, appointed by the same council,

and of which one forms a part.[51]

The principal functions of the triple council are to watch over the

council and the tribunal, to establish the project of the budget

of receipts and expenditures, and to convoke the Landsgemeinde in

extraordinary assembly. The process of addition is applied in many

ways in Appenzell-interior; it is applied in particular to the little

council, which is charged with the principal judicial powers. This

body judges sometimes as a weekly council; it is then only a section

of the little council; sometimes with a simple addition, again with

the reinforced addition. Finally, with a last reinforcement, it forms

what is called the council of blood (_Blutrath_). As there are councils

formed by addition, so there are others formed by reduction, as,

for example, the weekly council of Unterwald-lower. It is appointed

by the Great Council (Landrath) and chosen from its body. It is the

executive, administrative, and police authority, subordinated to the

Great Council. It is composed of the Landammann, as President, and

of twelve members appointed for two years. It assembles in ordinary

session on Monday of each week, and in extraordinary session, when

convoked by the President, and as often as there is need. The third

and remaining authority in this pure democracy is the Commission of

State. It is appointed by the Landsgemeinde, and replaces the council,

for affairs of lesser importance. In Glarus this commission is divided

into two sections, to expedite business. The first is composed of

all the members of the commission; and the second, of three members,

the President included, alternating among themselves after a manner

of rotation, established by the commission. The first section (or

the commission _in pleno_) is charged with the correspondence of

foreign states, the federal authority, and the Confederate states;

with giving preliminary advice upon questions referred to it, or even

with deciding them by the council. The second section is charged

with the ratification of deeds of sale and of wills, with decisions

upon the prolongation of the terms for the liquidation of bankrupt

estates, etc. The Commission of State of Appenzell-exterior has also

the surveillance of the administration of the Communes. The Landammann

presides over the Landsgemeinde, the double or triple council, the

council or Landrath, and the Commission of State. He receives all the

despatches addressed to the authorities presided over by him, and he

is bound to make them known at the next session. He keeps the seal of

state, signs and seals concordats and conventions. He watches over the

execution of the decrees of the Landsgemeinde, the Councils, and the

Commission of State, in so far as the execution is not intrusted to a

special authority. The re-election of the Landammann is universal; and

the office, though always filled by an annual selection, becomes almost

hereditary in a single family.

Customs still exercise a considerable empire in these Cantons, and

the Landsgemeinde makes but few laws; there is none of the confusion

and uncertainty that come from a multiplicity of laws; a source to

which was imputed a great part of the miseries suffered by the Romans

at the time when “the laws grew to be innumerable in the worst and

most corrupt state of things.”[52] The people of these Cantons fill

the idea of Bacon, as to innovation, “to follow the example of time

itself, which indeed innovateth greatly, but quietly and by degrees

scarce to be perceived.” Changes in established institutions must be

considered in reference to existing interests, habits, manners, and

modes of thinking. In vain should we try to promote the common weal

by introducing alterations, however well designed, which have no

hold on the feelings of the people, or are at variance with them, or

which shock their deeply-seated prejudices. There are two different

considerations involved: the propriety of retaining institutions merely

because they have been sanctioned by our ancestors, or transmitted

to us through a series of ages; and the propriety of retaining them

because they are strongly settled in the actual habits, tastes, and

prejudices of the people. While it would argue extreme imbecility,

to spare cumbrous or hurtful institutions on no better ground than

the former, it is absolutely indispensable to pay a cautious regard

to the latter. The existing habits, tastes, and prejudices of the

community, equally with the universal properties of human nature,

are material elements of the politician’s calculations. They are all

sources of pleasure and pain, all springs of action which call, on

his part, for tender handling and accurate appreciation. There is

scarcely a question in the whole compass of politics on which there

is a greater unanimity among philosophers and statesmen than there

is on the policy of cautious and gradual, in opposition to rash and

sudden, reforms on the one hand, and to a pertinacious retention of

incongruities and abuses on the other. As to the improvements which

are to be introduced into a political system, their quantity and

their period must be determined by the degree of knowledge existing

in any country, and the state of preparation of the public mind for

the changes that are to be desired. A passage in the correspondence of

Mr. Jefferson contains a highly instructive exposition of his opinion

on this subject, expressed in his happiest manner: “I am certainly,”

says he, “not an advocate for frequent and untried changes in laws and

constitutions. I think moderate imperfections had better be borne,

because, when once known, we accommodate ourselves to them, and find

practical means of correcting their ill effects. But I know also that

laws and institutions must go hand in hand with the progress of the

human mind. As that becomes more developed, more enlightened; as new

discoveries are made, new truths disclosed, and manners and opinions

changed with the change of circumstances, institutions must advance

also, and keep pace with the times.” It is well to stand fast in the

old paths; but the old paths should be the paths of progress; to

shrink from mere change for the sake of change; but fearlessly to

change, whenever change is really needed. All mountain races love the

past, and suspect new things. Their fundamental laws are few and slowly

formed; as slowly formed as they are stoutly held. The constitutions

of the Swiss Cantons were originally of the simplest forms of ancient

democracy. The old democracy, whether absolute or modified in form,

was always direct; modern democracy is, as a rule, representative. It

is obvious that the former presupposes great simplicity of life and

occupation, as in the small communities of mountain valleys; nothing

could render it consistent with the public peace, but the simple

habits of a people of shepherds and husbandmen among whom political

dissensions do not prevail. This substitution of the many for the one

or the few, of the totality of the community for a determinate portion

of it, is an experiment perhaps of insuperable difficulty, except for

very small states, and especially for agricultural or pastoral peoples.

The Landsgemeinde is only able, at most, to announce the general

opinion, to express its approval or its disapproval of a proposition

already known; but altogether incapable of deliberating seriously

on a projected law, or of solving the more complicated problems of

politics. On a wider field and with a more complex society, no such

polity would be possible. To a great nation with extended territories

and large population, the application of the federal principle is

necessary. Therefore in all but four Cantons of Switzerland this

primitive type of government has passed away. That it contains the

germs out of which every free constitution in the world has grown

cannot be denied. A cognate influence, if well considered, will go far

towards accounting for that prodigious resolution and success with

which the ancient commonwealths maintained their national rights. The

whole territories of the Athenian, Spartan, and Roman republics,

were originally but a single province; and the whole strength of the

province was concentrated in a single city, the embryo of their future

greatness, the nucleus around which all their subsequent acquisitions

were formed. Within the sacred walls of Rome and Athens, all classes

of citizens assembled like one great united family; they lived, they

consulted, they transacted business together, and together repaired

for public debate or religious devotion, for manly amusement, or

philosophical speculation, to the forum or the temple, the circus or

the portico. Virtuous emulation was roused, the force of public opinion

increased, and the importance of the individual in the general scale

visibly exalted. The Landsgemeinde is self-government in its noblest

reach and simplest form, where every man is legislator, judge, and

executive. What rare simplicity! No wrangling after power, no intrigue

after place, no lust for fame; one thought alone, to live just as their

fathers did, in perfect liberty, and fearing none but God. These simple

democracies in the Cantons of Switzerland, which have existed for a

thousand years, little touched by the stream of European life, deserve

our respect for their long history that is rich in many episodes, and

for the peaceful and happy existence of their people. They furnish

us with a bit of realistic political education, a successful working

example of the purest democracy in the world. It throbs with a vital

sense of government at first hands; every citizen a very live political

entity, and the sense of government very individual. Obstinately

conservative, with a profound disbelief in theory, they remind one

of the ox, which walks straightforward with a slow, heavy, and firm

tread. They take no stock in the fallacy, that a new system, political

or social, can be ordered like a new suit of clothes, and would as

soon think of ordering a new suit of flesh and skin. With sincere

satisfaction and pride, they are given to exclaim, “Thanks to our

sublime resistance to innovations; thanks to the cold sluggishness of

our national character, we still bear the stamp of our forefathers:”

“So have old customs there, from sire to son,

Been handed down unchanging and unchanged;

Nor will they brook to swerve or turn aside

From the fixed, even tenor of their life.”

CHAPTER VIII.

THE REFERENDUM.

The student of politics may always look with advantage to Switzerland

for the latest forms and results of democratic experiments. Federal

laws, decrees, and resolutions require the concurrence of both branches

of the Federal Assembly; but the process does not always end at that

point. Such concurrence is not adequate in all cases for them to come

into force. Article 89 of the constitution declares that “federal laws

are submitted to the people for adoption or rejection on the demand of

30,000 active citizens, or eight Cantons; the same is the case with

federal decrees of a general bearing, and not of an urgent character.”

This is known as the Referendum, and is supposed to be derived from

the practice of the old Swiss Confederation, when the delegates of the

thirteen independent states of which it was composed had to _refer_

to their governments for confirmation the decisions of the Federal

Diet. It is one of the most characteristic of Swiss institutions,

and is by far the most original creation of Swiss democracy. “The

Referendum looks at first sight like a French _plébiscite_, but no

two institutions can be marked by more essential differences. The

_plébiscite_ is a revolutionary or at least abnormal proceeding.

It is not preceded by debate. The form and nature of the question

to be submitted to the nation are chosen and settled by the men in

power, and Frenchmen are asked whether they will or will not accept a

given policy. Rarely, indeed, when it has been taken, has the voting

itself been either free or fair. Deliberation and discussion are the

requisite conditions for rational decision. Where effective opposition

is an impossibility, nominal assent is an unmeaning compliment.

These essential characteristics, the lack of which deprives a French

_plébiscite_ of all moral significance, are the undoubted properties

of the Swiss Referendum. It is a real appeal to the true judgment of

the nation, and the appeal is free from the coercion, the unreality,

and the fraud which taint or vitiate a _plébiscite_. The Referendum, in

short, is a regular, normal, peaceful proceeding, unconnected with any

revolution, any violence, or despotic coercion.”[53]

The Referendum is a kind of substitute for the veto; it gives no power

to modify, no power to substitute; it is a pure negative. It does not

enable the electors to pass laws at their own will; it is a mere veto

on such legislation as does not approve itself to the electorate. It

is a veto lodged in the hands of a sovereign people. A question is

simplified as much as possible, and every citizen has the fullest

opportunity, from the public platform, or in the columns of the press,

or in private conversation, to advocate or deprecate its adoption;

and the entire enfranchised portion of the community is asked to say

“Aye” or “No,” as to whether the law shall become operative. It is a

reference to the people’s judgment of a distinct, definite, clearly

stated law. Under the Constitution of 1848, only such measures passed

by the Assembly as clearly involved constitutional changes were subject

to the Referendum. The jealousy of the Cantons, lest their own

civil and religious privileges should be invaded, and their fear of

influences, in the central government, adverse to their own sovereign

rights, demanded an unrestricted reference to the popular vote. This

was conceded in the revision of 1874, when the Referendum was extended

to all federal laws and federal decrees, “of a general nature and not

of an urgent character.” The matter now stands thus: no change can be

introduced into the constitution which is not sanctioned by the vote

of the Swiss people. The Federal Assembly, indeed, may of its own

authority pass laws which take effect without any popular vote; but

it is practically true that no enactment, important enough to excite

effective opposition, can ever become a law until it has received the

deliberately expressed sanction of the people. The words “decrees of

a general nature and not of an urgent character” have never received

even a quasi-judicial construction, either from the Federal Council or

from the Federal Assembly, the two organs supervising its execution.

There doubtless has been conflicting and arbitrary action taken under

it. The weight of opinion, as inferred from the line of precedence,

appears to be that resolutions are of a general nature, when they fix

permanent and obligatory rules, either for the citizens or the Cantons,

but not when they apply only to special cases. The whole detail of the

exercise of the Referendum is placed by the constitution, under the

regulation of the Assembly, and in June, 1874, soon after the adoption

of the constitution, a federal law was passed for carrying it out. All

laws and resolutions, on which the popular vote may be demanded, are

to be published immediately after their passage, and copies sent to

the governments of the several Cantons. Through the Cantons they are

brought to the attention of the Communes. The official publication

expressly calls attention to the “date of opposition,” or when the

period for Referendum expires. This period is ninety days, running

from the date of the publication of the law. The demand for a popular

vote must be made by written petition, addressed to the Federal

Council, all signatures must be autographic, and the chief officer of

the Commune must attest the right of each signer to vote. If, at the

expiration of the ninety days, the demand is found to have been made by

30,000 voters, the Federal Council fixes a date for taking the popular

vote; this date must be at least four weeks from the date of the notice

given by the Federal Council. The vote is “Yes” or “No,” and a simple

majority of those voting is decisive. Unless, however, the demand

for such a reference is made within the ninety days, the people are

presumed to have given a tacit assent, and the bill becomes a law, and

its execution ordered by the Federal Council.

Under this peculiar institution, a condition exists, in which the

sovereignty of the people is no longer a speculative doctrine, but a

living reality; it makes a very direct and thorough democracy, and its

application has proven neither ineffective nor unduly obstructive.

Since the adoption of the Referendum, in 1874, there have been vetoed,

among other laws passed by the Assembly, the following: “Modification

of the right of voting,” “Bank-notes law,” “Indemnities payable to the

Confederation by citizens dispensed from military service,” “Political

rights,” “A law respecting certain epidemics,” “Appointment of a

federal secretary of education,” “Creation of a special secretary in

the federal department of justice and police,” “Granting an annual

salary of 10,000 francs for a secretary to the Swiss legation at

Washington,” “Exempting native commercial travellers from taxation

which those of other countries had not to pay,” “Power to Federal

Council to remove criminal cases from a cantonal to the Federal

Tribunal, when there is reason to suspect the fairness of the former.”

The only important laws sanctioned under the Referendum, during the

same period, are the “Marriage law,” “Factories law,” “Subsidies to

Alpine Railways,” and a general “Banking law.” Also three modifications

of the federal constitution respecting “Patent law,” “Capital

punishment,” and “Spirituous liquor monopoly.”

At the time of the introduction of the general Referendum, one of

Switzerland’s ablest public men declared that it would be “the greatest

trial to which a republic was ever subjected.” It was apprehended by

some that it would invite, on the part of the populace, interference

with a prudent and independent direction of affairs. Others held it to

be scarcely consistent with the true theory of representation; that it

is of the very essence of representation that the representative body

should stand in the place of the people, possessing their confidence,

exercising their plenary powers, speaking with their voice and acting

with their full consent; otherwise the legislative function is wanting,

and it becomes a mere deliberative council. There is, however, nothing

to show that the Swiss Assembly from this cause lacks weight or

respectability; it compares favorably enough with the law-making body

in any country. It is the primary doctrine of the Swiss Confederation,

that the sovereignty of the people must be absolute, whether exercised

personally, as in some of the rural Cantons, or through their

representatives and the Referendum. This doctrine has been maintained

in Swiss institutions from the earliest time until the present day. So

elaborate a scheme for the passing of federal laws cannot be without

inconvenience; but it is a fundamental principle of the nation, and at

once satisfies the democratic traditions of the people and the natural

jealousies of the several Cantons. It is a true check and safeguard in

making the legislative power directly responsible to public opinion,

and in giving the nation an easy and simple opportunity of marking

that opinion; of testifying their disavowal and rejection. If it, as

alleged, produces a diminution of the feeling of responsibility in

the representative, that possible disadvantage is outweighed by the

educative effect which it exercises on the great bulk of the citizens.

It tends to give them a keener interest in political questions. Through

it the citizen becomes conscious of his individual influence, and

that his vote contributes appreciably both to the maintenance and

direction of the laws under which he lives, and he is impressed with

the necessity of a careful discharge of his political rights.

To the confusion and dismay of the strongest advocates of the

Referendum, the measures which they most prized, when so put, have

been negatived. Contrary to all expectations, laws of the highest

importance, some of them openly framed for popularity, have been vetoed

by the people after they have been adopted by the federal and cantonal

legislatures. This result is sufficiently intelligible. It is possible,

by agitation and exhortation, to produce in the mind of the average

citizen a vague impression that he desires a particular change, but

when the agitation has settled down, when the subject has been threshed

out, when the law is before him with all its detail, he is sure to find

in it something that is likely to disturb his habits, his ideas, his

prejudice, or his interest, and so he votes, “No.” Thus it serves as a

guarantee against precipitate legislation in matters of vital concern

to the community; and is considered thoroughly successful by those who

wish that there should be as little legislation as possible. In short,

the Swiss experience with this popular veto on legislation is evidence

that, under certain circumstances, it produces good effects. It does

not hurry on a law, nor facilitate any legislation; it merely forms

an additional safeguard against the hastiness or violence of party;

it is a check on popular impatience. It secures the laws against any

change which the sovereign people do not deliberately approve. The

object of such safeguard is not to thwart the wishes of the democracy,

but to insure that a temporary or factitious majority shall not

override the will of the people. It tends to produce permanence in the

tenure of office; it is a distinct recognition of the elementary but

important principle, that in matters of legislation patriotic citizens

ought to distinguish between measures and men; and this distinction

Swiss voters have shown themselves fully capable of drawing. It is an

institution which admirably fits a system of popular government. It is

the only check on the predominance of party which is at the same time

democratic and conservative, as it has demonstrated. It is democratic,

for it appeals to and protects the sovereignty of the people; it is

conservative, for it balances the weight of the nation’s common sense

against the violence of partisanship and the fanaticism of over-zealous

reformers.

The history of the Referendum in Switzerland confirms the fact that,

as a rule, the people are not favorable to legislation; and that

the necessity must be very great and the good ends aimed at very

manifest, to withstand a direct consultation of the constituencies.

The ancient republics hardly legislated at all. Their democratic

energy was expended upon war, diplomacy, and justice; putting nearly

insuperable obstacles in the way of a change of law. From fundamental

and permanent causes springs this legislative infertility in republics.

Changes are at once conservative and progressive; conservative because

progressive, progressive because conservative. The Referendum reserves

to the people, as the old Swiss expression ran, _höchste und grösste

Gewalt_, the highest and greatest power. The foremost statesman in

Switzerland, a member at present of the Federal Council,[54] calls it

_l’essai le plus grandiose qu’une République ait jamais tenté_, the

grandest attempt ever made by a republic. The constitutional provision

that when a certain number of voters demand a particular measure, or

require a further sanction for a particular enactment, it shall be put

to the vote of the whole country, certainly presents a considerable

future before democratically governed societies. Peradventure the

United States may realize the prophecy made by Mr. Labouchère in the

House of Commons, in 1882, that the people, tired of the deluge of

debate, would some day substitute for it the direct consultation of the

constituencies.

The Referendum is practically in use in the United States for

constitutional amendments, but so far American publicists seem to

regard it quite out of place for ordinary laws, and allege that its

introduction would obscure the distinction on which the whole American

system rests. For this reason the growing tendency of the people, in

the several States, to take a direct part in legislation, even by

means of constitutional amendments, is regarded by the same school of

thinkers as a danger, which, if it goes too far, will be a serious

injury to the American theory of government.

The principle behind the Referendum is as old as the Swiss nation, the

word coming from the usages of the old Federal Diets, in which the

delegates did not decide matters themselves, but voted _ad referendum_,

and submitted their actions to the home governments. The power to veto

an ordinary law made by representatives was established for the first

time in modern days, in 1831, in the Canton of St. Gallen. It was a

compromise between the party which wanted to establish pure democracy,

and the party of representative government. It is, however, only the

same old Swiss voter of centuries ago, telling his member of the Diet

to conclude nothing important without his consent. The demand of

50,000 electors to amend the constitution, or to repeal or to modify

an existing law, is called a “popular initiative,” and, when made,

the Federal Assembly must submit the question to a vote of the people

and the Canton. In every cantonal constitution, except Freiburg, the

right of the people to have all important legislation subjected in

some form to popular confirmation or rejection is recognized. While

general assemblies of the people in the Cantons to make the laws fell

into desuetude, popular franchise and complete freedom of election

were not enough to satisfy the democratic sensibilities of the Swiss.

They were still jealous of the plenary powers of their delegates,

and insisted that their deliberations when formulated into laws,

should be referred to the sovereign people. Previous to the French

revolution, the governments of the different Cantons had largely fallen

into the hands of a limited number of aristocratic families. The

laboring classes were crushed under enormous burdens by the nobility

in the rural districts, and by the rich _bourgeoisie_ in the cities.

Artificial barriers were placed about the freedom of commerce and labor

in the interest of these more powerful classes. The period of reaction

following the Napoleonic era was unfavorable to the development of

popular institutions. Since the cantonal revolutions of 1830 there has

been a general return to the principle known as the Referendum; and

after the federal Constitution of 1848, by which the constitution of a

Canton could only be revised on the demand of an absolute majority of

the citizens, the policy of extending the principles of the Referendum

to its fullest limits rapidly grew in favor. There are two forms of

Referendum existing in the Cantons, _compulsory_ and _optional_; the

one requiring the reference of every law passed by the Great Council

before it acquires validity; and in the other, a discretionary power of

reference is reserved to the people. The first is regarded as the more

practical and satisfactory; the chief objection to the latter being the

agitation occasioned in procuring the necessary signatures, producing

excitement, diverting the thoughts of voters from the real question at

issue, and thus giving an undue bias to public opinion, and a character

of partisanship to the resulting Referendum.

The number of signatures required in the optional Referendum varies,

according to the size of the Canton, from five hundred to one thousand

voters, and the time within which it must be made, usually thirty

days from the passage of the law and its official publication. The

compulsory Referendum exists in the seven Cantons of Zurich, Bern,

Solothurn, Grisons, Aargau, Thurgau, and the Valais, and in the rural

half-Canton of Basel. In Schwyz and Vaud both forms obtain. In Zurich

a popular vote must be taken upon all changes in the constitution, new

laws, concordats, and the appropriation of an amount exceeding 250,000

francs, or an annual expenditure exceeding 20,000 francs. The power of

the cantonal council in Zurich is further limited by the _initiative_.

Any voter, if supported by one-third of the members present at its

next sitting, or any 5000 voters, may demand the passing, alteration

or abolition of a law, or of a decision of the council. The optional

Referendum exists in the seven Cantons of Luzern, Zug, Schaffhausen,

St. Gallen, Ticino, Neuchâtel, Geneva, and the urban portion of Basel.

Generally speaking, laws, concordats, and sometimes resolutions of

cantonal councils are submitted to optional Referendum. It exists for

financial matters, in different gradations in other Cantons, from

500,000 francs in Bern to 50,000 francs in Schwyz. The _initiative_ as

to revision of the constitution prevails in all of the Cantons upon

certain conditions, and the demand of voters varying in number from

1500 to 5000; with the exception of Bern and Valais, where there is

no _initiative_. As before stated, Freiburg is now the only Canton in

which the sovereignty of the people is not thus directly exercised;

all the others, with the exception of those where there is still

a _Landsgemeinde_, possess either a _compulsory_ or an _optional

Referendum_; and in two instances both. A few Cantons have introduced

an _imperative initiative_, by petition from a fixed number of voters,

demanding action upon a certain matter by the cantonal council;

whereupon the council must take a vote upon it, and then submit it

to a popular vote, even if the action of the council upon it has been

unfavorable.

This combination of representative institutions with the direct

exercise of popular sovereignty is well calculated to promote the

welfare of the people, occupying the peculiar position in which the

Swiss are placed. The discipline of self-government in the Commune,

and the training afforded by an effective system of popular education,

have qualified them for the practice of direct democracy. With the

Swiss legislature standing above the executive and judiciary, we might

call Switzerland a parliamentary republic, if it were not for another

power, which stands not only in the final theory, but even in the daily

practice, of the constitution, above the legislature. This power is

the people themselves. The Referendum shows clearly where the seat of

sovereignty in Switzerland is located.

CHAPTER IX.

THE COMMUNES.

The lowest unit in the political system is that which still exists

under various names, as the Mark, the Gemeinde, the Commune, or the

Parish, the analogue of the precinct or township in the United States.

The communal system of Switzerland is peculiar in many respects, and

presents one of the most instructive lessons which modern political

life furnishes of the working of village communities.

The Swiss Commune, speaking comprehensively, is a political and

civil division, standing midway between a political body and a joint

stock company: a corporation, in one sense, endowed with perpetuity,

and holding landed and other property; also a political entity,

embracing all the burghers for economical purposes,--that is, for

the administration and enjoyment of the usufruct of the communal

property; and embracing all the inhabitants for legislative and

administrative purposes, with a great variety of local exceptions and

limitations. The right of the Cantons and the several Communes to

modify these features results in endless divergencies. Being an area

of local self-government, and possessed, to a high degree, of freedom

in self-direction, the Commune is not far from being an independent,

autonomous entity, forming an _imperium in imperio_, both politically

and economically. Forming the simplest division in the Confederation,

still it is of vital importance; its personality to the Canton being

what the Canton is to the nation. It inspires with its common life,

not simply a life of political activity, but of common social and

economical interests. It is so intimately bound up with all existing

rights that its wishes are largely paramount in federal and cantonal

action. Having so genuine and vigorous a political, social, and

economical life of its own, in which the faiths, hopes, passions, and

duties of the citizen are involved, the Commune may be considered a

small republic with indefinite rights.

The Swiss Commune is of very ancient origin, and claims to have been

founded on the idea that civic rights and freedom were disconnected

from mere birth or ownership of land, stress being laid instead on

quasi-corporate union; one of the many forms of the _gens_ or clan, in

which it is no longer a wandering or a merely predatory body; but when,

on the other hand, it takes the form of an agricultural body, holding

its common lands, and forming one component element of a commonwealth.

The independence of the Swiss Commune has survived from the days of

the primitive village community; that gathering of real or artificial

kinsmen, made up of families, each living under the rule, the _mund_,

of its own father; that _patria potestas_ which formed so marked and

lasting a feature of the Roman law, and is to-day respected by the

Confederation, designedly preserved by legislation, and jealously

guarded by the people.

The integer of Swiss political society is not the individual, not

the household; the Commune is the Switzer’s ideal of a social and

political system. The Swiss Society of Public Usefulness, in a pamphlet

published in 1871, called “Souvenir de la Suisse,” with the purpose of

presenting the Swiss republic as a model to the French soldiers, who

at that time under Bourbaki had retreated into Switzerland, declares:

“Our laws proceed from this great principle, that our institutions are

truly free and popular, only in so far as our Communes are free; we

move from low to high, the Commune is the centre of our life, and there

can be no true development of liberty, except so far as it proceeds

from the Communes, from the centre to the circling lines, from the

simple to the composite.” Mr. Numa Droz, chief of foreign affairs in

the Swiss Cabinet, in his “Instruction Civique,” a text-book in the

Swiss public school, says: “The Commune is almost the state in a small

compass; to employ an illustration from natural history, it is one of

the cells of which the social body is composed. It is certain that a

much-developed local right contributes to the strength and prosperity

of the state. The Communes must have perfect liberty in rivalling one

another in their efforts to satisfy and advance the interests they

have in charge. So, care must be taken not to reduce them to a uniform

level, which would stifle all spirit of initiative, every desire for

improvement. The Communes were the first and principal nurseries of

democracy, and are still so in many countries. In their bosom the

citizens are best able of training themselves for public life, of

familiarizing themselves with administrative questions, and learning

how to deal with them. They are the natural nursery grounds, whence the

state legislators and public servants come. A citizen, reared in the

practical school of communal life, will always understand better the

popular wants than one whose political education has been obtained in

the offices of federal administration.”

The commission appointed by the National Council to prepare a revised

constitution for the Confederation, in their report, May, 1871, say:

“The liberty of the Swiss Commune is justly considered as the school

and cradle of our political liberties.”

The Swiss constitution expressly recognizes communal citizenship and

rights. In declaring that every Swiss citizen shall enjoy at his place

of residence all rights of the citizens of the Canton, as also, all

rights of the citizens of the Commune, it makes this reservation: “He

shall, however, have no share in the common property of citizens or of

the corporation, nor shall he exercise the right to vote in matters

pertaining purely to such affairs, unless the cantonal laws determine

otherwise.” It further provides that “No Canton shall deprive any of

its citizens of his rights, whether acquired by birth or settlement,”

referring to the citizenship derived from his “Commune d’Origine.”

Every child born of registered citizens becomes, by birth, a citizen

of the Commune, and thereby also a citizen of the Canton, and of

the Confederation. He shares all political rights, exercises them

according to established rule, is supported by the communal funds

when in distress, and assists in bearing all Communal burdens. He

is therefore fully entitled to every Swiss privilege, when his name

once stands in the communal register, and of these sacred rights he

cannot be alienated. All whose names are not thus registered are of

the “homeless” (“Heimathlosen”), a word of melancholy significance in

Switzerland.

Membership of a Commune comes by descent or purchase; and marriage

confers on the wife the communal citizenship of her husband. In the

first, that of descent, the right of the Commune depends not on place

of birth or domicile, but on descent from parents who are citizens

of the Commune, even though they live outside of it. It is not unlike

the old Roman municipal law, which was also based on _origo_ from a

particular _municipium_. In the second, that of purchase, it is of the

essence of a Commune that the stranger should be admitted to membership

only on such terms as the Commune itself may think good. In every case

it is regarded as a privilege and an affair of sale. A man of any craft

or creed may apply for admission, but the Commune is the judge of

whether his prayer will be granted or not. More or less inquiry will

be made as to his antecedents, his ability to support himself, and

his belongings; but, at all events, it is a business transaction, and

the price varies according to the value of the communal property, the

age, condition in life, and number in the family of the applicant. So

much for a wife and each child; a boy is taxed more than a girl, for

in the course of time the one may add by marriage to the burden of the

Commune, and the other may lessen it by marrying into another Commune.

In some, the craft and calling are regarded; in a few, where they

are in part a congregation with a common faith in charge, religious

considerations may weigh more than any thought of worldly goods. A

foreigner is usually charged more than a native. In olden time this

discrimination extended to citizens of other Cantons, and the last

trace of this distinction was only abolished in 1871 by the Commune of

Lausanne. Some Communes are closed, but many remain open for additional

members. Under any circumstances, it is a privilege to be bought, and

the tariff varies from 50 to 5000 francs, or from ten to one thousand

dollars. This operates as a tax on Swiss citizenship, of which the

Commune is the necessary basis.[55]

Originally, entrance into the Guilds, or _Zünfte_, was the only road to

citizenship in the Commune. These corporations or guilds had certain

monopolies and political privileges. It was a prominent feature of the

time that every mass of men, in any way whatever associated, was also

incorporated. They were necessary for the protection of the humble

burgher and infant industry against an unruly aristocracy, as well as,

in some cases, for the transmission of knowledge and skill. Without

them the cities would never have performed their high service in the

promotion of civilization, and the acknowledgment of the burgher’s

rights. The various trades were separated by these guilds, but within

them the employer and the employed had a common interest. Their effect

was to strengthen the rights of their members and to raise the dignity

of their masters. Under the reign of Henry I., surnamed the Fowler,

when that awful catastrophe came over all the central part of Europe,

the irruption of the terrible and ferocious Magyars, who swarmed

westward from Hungary, spreading horror and desolation wherever they

went, and Helvetia, being exactly in their course and unfortified

against such an invasion, suffered fearfully, he compassionated its

helpless condition and took pains to fortify the cities and towns.

The peasantry, however, were so attached to their free mountain lives

that often, in spite of all danger, they could not be persuaded to

come into the towns. So, in order to induce them to do so, Henry

conferred very many privileges on the citizens of the towns, and in

this way laid the foundation of the guild and burgher class. All the

members of the guilds had to be burghers of the particular Commune.

The systematic education and gradual development of the artisan class,

their progress in technical skill and in wealth, their privilege of

carrying arms under the banner of their corporation or guild, their

permanent connection with the interests and prosperity of the town,

all tended to awaken in the artisans a sense of their importance.

As the administration of justice became general, government became

national, and skill and knowledge were so diffused that no special

protection, by way of monopolizing guilds, was any longer deemed

necessary. In order to check the tendency of members of poor Communes

to establish themselves in more prosperous ones, a practice prevalent

when the property was held in common by all the inhabitants, there

was a close corporation constituted, called the Burgher Commune, to

the members of which the communal property was limited; the remaining

inhabitants being excluded from participation in it, as well as in the

local administration. It soon came to pass, with increased facility of

communications, that in most Communes the majority of the inhabitants

were not burghers. It was necessary to raise taxes to meet the public

expenditure, and it was not admissible that the burghers alone should

administer the Commune to the exclusion of all others who dwelt within

its limits. Hence in many Cantons there came to be a double Commune;

that of the burghers who kept their property and only looked after the

interests of their own members, especially of those who were poor; then

there was that of the inhabitants forming a municipality, embracing

the whole of the population and providing for the public service. The

former is known as the _Commune des bourgeois_ or _Bürgergemeinde_;

the latter, _Commune des habitants_ or _Einwohnergemeinde_. This dual

communal organism has given rise to much political contention, the

Radicals desiring to abolish all Burgher Communes and to establish what

is termed a “unique” Commune of all the inhabitants; but to this the

Conservatives of all shades are strongly opposed.

There is no limit as to the area or population of the Commune. In

the Canton of Bern there are 509 Communes, the largest embracing a

population of 44,000, and the smallest 35; many have less than 200

inhabitants. Some are rich and extensive, others are poor and small.

Rules and regulations differ, but each Commune is free and independent

in itself, subject only to the supervision of the Canton.

Every Commune owns some land, some wood, and some water-right, in

common fee. These constitute the communal fund, in which each member

has an equal share. The allotment of land is so made that every one may

have a part in the different kinds, forest, pasture, and arable. Each

Commune manages its common property very much its own fashion, but from

the general similarity of their circumstances and conditions, certain

uniform methods pervade their management. It is with these general

features we will deal. All the Communes which have arable lands, allot

them among their members upon an equitable basis; consequently one will

see a large number of small squares of land growing different crops,

and resembling a checker-board; each one constitutes the share of a

member of the Commune; and one hundred and twenty-nine gleaners have

been counted in a field, thus subdivided, of less than six acres. A

large part of the land of each Commune is preserved as a common domain,

called _Allmend_, signifying the property of all. It means land which

is held and used, as the word itself indicates, in common; and by

common usage the name _Allmend_ is restricted in some Communes to that

portion of the undivided domain situated near the village, and which

is under cultivation. These common lands may be divided into three

general classes, forest, meadow, and cultivated land (_Wald_, _Weide_,

and _Feld_). Some Communes have in addition lands where rushes are

cut for litter (_Riethern_), and others where turf is cut for fuel

(_Torfplätze_). The economic corporation, which owns the _Allmends_,

is distinct from the political body which constitutes the Commune.

The right exercised by the Communes over their domain is not a right

of “collective ownership,” it is a right of “common ownership.” The

domain does not belong to a collection of individuals, it belongs to

a perpetual corporation. The individual has no share in the landed

property, but merely a right to a proportional part of the produce.

Then in some are the old burghers and the new burghers. The former

are the lineal descendants of those who were burghers for hundreds of

years, and they only own these lands in common; the latter are those,

or the descendants of those, who, having come in from other Cantons

or Communes, settled in the place, and have no rights of any kind in

the common land. The land may be common to all the old burghers of a

Commune equally; it is then said to belong to the Commune; or it may

belong to sections of the old burghers, as, for instance, to those who

reside in a particular class of families; and again these may hold it

either simply for their own use or for the promotion of some defined

object. The right of common, with rare exception, cannot be assigned,

transferred, or let, except to Communers; it is a right inherent in

the person. As a rule, the right belongs to every separate couple of

hereditary usufructuaries, who have had “fire and light” within the

Commune during the year or at some fixed date. The girls and young men

therefore very commonly keep their own little _ménage_, even though

they have to go to their daily work at other people’s houses; and if

they have remained the whole week away from their home, they come back

on Sunday evening to make “fire and light” in their habitations. A

young man when he marries can claim the right; this rule is extended

to a widow or orphans living together, and sometimes to every son who

attains the age of twenty-five, provided he lives in a separate house.

Natural children, whose parentage is known, may also claim their share.

To the communer, his native soil is a veritable _alma parens_, a good

foster-mother. He has a share in it by virtue of a personal inalienable

right, which no one can dispute, and which the lapse of centuries has

consecrated. It does not simply give its members abstract rights; it

procures them also in some measure the means of existence. It provides

a valuable resource for indigent families, and preserves them at least

from the last extremity of distress. It supplies the expenses of the

school, the church, the police, and the roads, besides securing to

its members the enjoyment of property. In a few Communes the wine and

bread, which is the fruit of their joint labor, forms the basis of an

annual banquet, at which all the members of the Commune take part, and

is known as the _Gemeinde-trinket_.

In 1799 the Swiss republic forbade all partition of communal land,

declaring, “these lands are the inheritance of your fathers, the fruit

of many years of toil and care, and belong not to you alone, but also

to your descendants.” There are, however, indications of a tendency

in Switzerland--which stands alone in the world as a land that has

maintained both the free political institutions and the communal system

of property, of the times before feudalism--towards a disintegration

of the _Allmend_. Thus, in the Canton of Glarus, the commonable Alps

are let by auction for a number of years, and, in complete opposition

to the ancient principles, strangers may obtain them. A project

was recently submitted to the Grand Council of Bern, to facilitate

the dissolution of the Communes, and to allow of the realization

of their property by the members. It received little support, but

was significant of the existence of a sentiment that may some day

become formidable and aggressive. Common property still plays a very

important part in the economic life of the Alpine Cantons, but private

property is spreading considerably. Facilities for transportation,

the substitution of machinery for manual labor, the accumulation of

capital, and all the marvellous revolution and progress of industrial

life, have brought about conditions which render the system of

commonable lands no longer the best. Families can be supported without

this common use, and, in most cases, better without it than with it.

It might be shown that, when capital exists in abundance, this common

use is a hinderance to the greatest possible production of food for

the people. No system that has been assailed by such conditions has

ever been able to maintain itself. It will be no defence of it, to say

that it has hitherto been a good and workable system, and that the

long ages of its existence have proved it to be so. This is what might

have been said, and doubtless was said with truth, but without effect,

of every system, not only of agronomy, but of everything else that

was ever established in the world. This is the logic of sentiment, of

habit, of custom, of tradition, and of those who think that they have

interests distinct from and superior to the interests of the rest of

the community, and of those who cannot understand what is understood

by the rest of the world. It is, however, no match for the logic of

facts, and of the general interest, the public good. That must ever be

the strongest logic, as well as the highest law. If, then, this common

use of land should be overturned by capital, notwithstanding its long

history and all that may be said on its behalf, we may infer that it

was the absence of capital which brought it into being and maintained

it. The abolition of common lands, or _Allmends_, the disappearance

of communal property into private ownership, would not involve the

existence of the Commune or impair the value of its most salient

features. The Commune forms a distinct part of the state organism, as

constituted by the cantonal power; it is a society of citizens for

the purpose of exercising the rights of election, legislation, and

administration; it has functions, as to certain affairs, in which it

is vested with a certain autonomy; its institutions, estates, and

donations, within the limits of the cantonal constitution, being under

its exclusive authority and direction. It is as administrative units,

presenting an orderly and systematic arrangement, giving the population

an opportunity to exercise an immediate influence on affairs, and

quickly awakening the public spirit, that the Communes possess their

most essential importance. The reason that the republican system is

so firmly established in Switzerland is, that it has its roots in

these minute districts forming the principal forces of political

and administrative life. Freedom is best served by breaking up

commonwealths into small self-governing communities. They decentralize

the government. A free state is free, not so much because its executive

or even because its legislature takes a certain shape, as because its

people are free to speak their minds and to act as they choose, within

the limits of the law, in all matters, public and private. That is the

best form of government that best secures these powers to its people.

In Switzerland national freedom has grown out of personal and local

freedom. The Confederation is a union of independent Cantons, the

Cantons a union of autonomous Communes. Political life is localized,

centripetal, intense, expressing itself in social and civic forms.

The parts come before the whole, the smaller units are not divisions

of the whole, but the whole is made up by the aggregation of the

smaller units. Each stage--Commune, Canton, Confederation--is alike

self-acting within its own range. Many of the Cantons changed from

oligarchies to democracies, many rose from the rank of subjects to

the rank of confederates; in all, their institutions rested on an

ancient and immemorial groundwork of Communes; and whatever is new

in them has grown naturally and consistently out of the old. During

the time when the greater Cantons were aristocratically governed,

some by a hereditary class of patricians, others by the exclusive

corporation of burghers, communal liberty was retained as the basis of

the cantonal organization, and through its influence, the republic,

the political ideal of the people, had its deep root in the popular

character and customs; therefore the transition from an aristocratic to

a representative republic was easy and natural, when, in harmony with

modern theories, civil liberties were extended to all classes.

Switzerland has 2706 Communes, divided as to nationality, 1352

German, 945 French, 291 Italian, and 118 in the Grisons, where the

Romansch language is used. These Communes as an area of general state

administration serve for electoral districts, and as voting districts

for the Referendum. Their powers are numerous. They provide for all the

public services within their limits, much after the manner of a Canton;

they possess a sort of local police, which keeps order day and night

in their territory, is present at fairs and markets, having an eye to

the public houses, and watches over rural property. Other communal

officials maintain the public buildings, roads, fountains, look after

the lighting, take measures against fires, superintend schools and

religious matters, and supply aid to the poor both in sickness and

health. In the small Communes there is only a municipal council,

composed of not less than four, elected directly by the members of the

Commune in a general assembly (_Gemeinde-Versammlung_), one of whom

is made presiding officer and called the _Syndic_ or _Maire_. In the

large Communes there are two councils, one legislative and the other

executive. A greater or less number of Communes in each Canton form

a district, presided over by a _Prefect_ (_Regierungsstatthalter_)

who represents the cantonal government. The functions of the communal

assemblies extend to: voting the budget, receipts and expenses; the

determination and apportionment of taxes; the choice of president

and functionaries of every kind, with the right of controlling and

dismissing them; administration of property belonging to the Commune;

acceptance or modification of all communal regulations; foundation

of churches, charitable institutions, hospitals, school-houses and

prisons. The assembly or legislative council elects the communal or

executive council, and the president of this body is the chief official

of the Commune. Every citizen is eligible to the communal council, who

is domiciled in the Commune, and a qualified voter in the communal

assembly. The qualifications which entitle every citizen in the Commune

to vote in the communal assembly require that he must have attained

his twentieth year, be _sui juris_, in full enjoyment of the general

civil and political rights of the citizen, and be under no temporary

civil or criminal disability. Paupers and those who have not paid

their taxes cannot vote; those, too, who from intemperate habits have

been prohibited from frequenting public houses are not allowed to vote

during that probationary period. The principal matters assigned to the

supervision of a communal council embrace: the local police, including

residents and establishments in the Commune; guardianship, embracing

orphans and those not capable of managing their own property (for any

improvident citizen may be made a ward, and the control of his property

taken away from him); the poor, relieving them as far as possible from

the communal funds, and when this is insufficient, to seek voluntary

contributions; public instruction, appointing the teachers in the

primary schools and paying their salaries; levying taxes upon the

landed property, capital and revenue, for the administration of the

Commune, when revenues of communal property are insufficient. The habit

of borrowing money on the security of communal credit has obtained but

little footing; far from being disposed to spare themselves by throwing

burdens on their successors, they rather think it necessary to get

together and keep together a capital which shall produce interest, a

school fund, a poor fund, so the weight of annual taxation for these

purposes may be lightened. In general, every citizen of a Commune

must serve his two years in any office to which he is elected, unless

excused, from the fact that he is already filling some public position,

or that he is sixty years old or in bad health; every one takes his

turn of office, as he takes, in earlier days, his spell of school, and

in his later days, his spell of camp. Non-members of the Commune, if

Swiss citizens, by virtue of a constitutional provision, have within it

equal rights, excepting in respect of the communal property; nor can

they be subjected to taxes or other contributions than those imposed

on their own citizens. Every inhabitant of a Commune must be inscribed

at the police office, and be prepared at all times to show that he is

really a member of the Commune; if he removes to another Canton he

must be fortified with this evidence of his communal citizenship, or

he will not be allowed to remain. This regulation is strictly enforced

in every case, specially where the party is in any danger of becoming

a public burden. Every Commune, under this strict police surveillance,

is absolutely protected against being compelled to support the vagrants

or beggars of other Communes. The idea that it is the duty of the

Commune to take care of its poor, the unfortunate, and incapable is

firmly planted in the mind and breast of every member. They will try to

prevent an hereditary or professional pauper from acquiring a domicile

in the Commune, and to return to their own Communes shiftless persons

that are apt to need aid, but are ready to relieve every case of

destitution which fairly belongs in the Commune.

The control of the Canton over the Communes in early times was only

nominal; it consisted in finding fault and proposing amendments that

were not adopted; any semblance of cantonal interference, in the way

of inspection and suggestions, being resented by the Communes. Of

later years there has been a gradual and systematic improvement in

the relation of the Canton and the Commune; and increased activity

of cantonal superintendence has effected a better management of the

Commune. The common funds as well as the common obligations have

been subjected to more efficient rules, without at all extinguishing

the principle of distinct communal management. Communal accounts are

referable to the Canton for investigation and correction. Where great

irregularities are discovered (which occurred once), the Canton has the

right to put a Commune under guardianship; a Commune might, indeed,

under certain circumstances be forced into bankruptcy. The Constitution

of 1874 largely extended this cantonal supervision over the Commune,

and modified many extraordinary powers hitherto exercised by it. Some

writers look upon the Commune as representing an “antiquated form of

corporation,” to which the modern era is opposed; a sort of mediæval

fraternity for the existence of which no plausible ground can be

found. Others still contend that the Communes form the true unities,

through which, by equilibration of the interests of each, the wants

of the whole are more wisely and effectively served. The republic of

Switzerland can largely trace its foundation, historically, to a free

communal constitution. It forms the solid foundation of the whole

organization. In the Commune, the citizen himself feels that he is

connected with his fellow-members by the bonds of a common ownership;

and with his fellow-citizens, by the common exercise of the same

right. With him the fair motto of the French, “Liberty, Equality, and

Fraternity,” is no empty formula inscribed on the tablets of public

documents. His liberty is complete, and has been handed down from

remote antiquity; equality is a fact sanctioned by all his laws;

fraternity is not mere sentiment, it is embodied in institutions which

make the members of the same Commune members of one family, partaking,

by equal right, in the hereditary patrimony. It would be unnatural

if he was not deeply attached to an administration in which he takes

so constant and essential a part. It is to him, also, the nursery

of independence, and the training-school for higher politics; not

controversial, office-seeking, electioneering politics, but politics

as including in one and the same comprehensive signification, as in

the vocabulary of a free country it should be, all the relations and

obligations of the citizen to the state. The rights and duties of a

citizen are themes of daily interest and discussion in the Commune,

and are taught in all its secondary and superior schools; every one is

instructed and encouraged to take a personal and intelligent interest

in what concerns the public weal, to be familiar with the public

business, to the interchange of ideas, and to the give-and-take of

civic life generally. He is taught that no man liveth to himself in a

republic, but every man has public duties, every man is a public man,

every man holds one high, sacred, all-embracing office, the office of a

free citizen.

Switzerland, with its Communes, fully answers Aristotle’s definition

of a state, as “the association of clans and village communities in a

complete and self-sufficing life.” Small bodies are more closely united

and more vigorous in the pursuit of their end than large communities;

this results from their leading more easily to personal friendships,

and from the circumstance that, in a limited circle, men are brought

more frequently and immediately into contact with one another. By this

means their sympathetic feelings become more deeply interested in the

common welfare; they see more clearly that they are pursuing a common

object, and perceive the importance of vigorous co-operation on the

part of each member of the association. Amid so small a number, each

person feels that his single vote and exertions are of consequence,

and the thought of this excites in him a sense of responsibility, and

inspires him with a more lively interest in that government of which

he himself is an efficient member. Every man who fills a communal

station, however humble, is conscious that he is playing his part in

the presence of the whole miniature republic, and that his conduct is

every moment exposed to a minute and jealous scrutiny. By all these

circumstances public virtue is stimulated, corruption checked, mutual

sympathy heightened, patriotic zeal inflamed, and the union of public

with private interests clearly and substantially demonstrated. “It

is not by the consolidation or concentration of powers, but by their

distribution, that good government is effected. Were not this great

country already divided into States, that division must be made,

that each might do for itself what concerns itself directly, and what

it can so much better do than a distant authority. Every State again

is divided into counties, each to take care of what lies within its

local bounds; each county again into townships or wards, to manage

minuter details; and every ward into farms, to be governed each by

its individual owner. It is by this partition of cares, descending in

gradation from general to particular, that the mass of human affairs

may be best managed for the good and prosperity of all.”[56]

CHAPTER X.

CITIZENSHIP.

In the old days of the Swiss Confederation, the days of the

_Staatenbund_, when no part of the internal sovereignty had been given

over to any central power, the citizen of any Canton was regarded

and treated as a foreigner in any other Canton; he was as strictly

a _metoikos_ as a Corinthian who had settled at Athens, having no

voice in the government either of the Canton or Commune into which he

removed. All Swiss citizens who settled in _Gemeinden_, or Communes,

of which they had not the hereditary burghership, answered exactly

to the Greek _metoikos_; being in every important respect strangers

in the places where they themselves dwelt, and where, perhaps, their

forefathers had dwelt for generations. Down to 1815, it was left to

each Canton to determine for itself the conditions under which persons

from without could settle and gain citizenship; and for the first

time, under the Constitution of 1848, a general law governing this

matter was adopted; and it was still further extended and elaborated

by that of 1874.[57] The good example of the United States, where it

had already been constitutionally provided that “the citizens of each

State shall be entitled to all privileges and immunities of citizens in

the several States,” was followed in the present Swiss constitution;

giving every Swiss citizen equal federal and cantonal rights, in

whatever part of the Confederation he may settle. The two higher

franchises, those of the Confederation and the Canton, are assured to

him at his place of domicile as fully as to a native thereof; but to

the lower franchise of the Commune he can be admitted only by a special

grant, or by the effect of some special cantonal enactment. Communal

questions, even including citizenship, are left to the legislation of

the Canton and of the Commune itself, the federal constitution only

providing that one domiciled in the Commune shall not be discriminated

against as to taxation. The mere fact of indefinite residence and

contribution to the local taxes no more gives one a right to communal

than it would to American citizenship. Membership in the Commune is

the determining factor of Swiss citizenship. Modern states generally

recognize nationality as a personal relation not mainly dependent

on place of birth or domicile, but on descent from members of the

nation and personal reception into its membership, place of birth and

domicile coming in to complete the notion. Midway between these comes

the Swiss principle of membership in the Communes, which forms the

basis of membership of the Canton (_Cantonsbürgerrecht_), and that, in

turn, of the Swiss Confederation (_Schweizerbürgerrecht_). Citizenship

in Switzerland is primarily an affair of the Commune, from which the

broader conception of citizenship in the Canton and the Confederation

must be reached. The “right of origin” is the great imprescriptible

right and muniment of Swiss citizenship, and the production of a

certificate of _Commune d’Origine_ secures the constitutional right

“to establish residence at any point in Swiss territory.” The lines

of distinction between these several conceptions are not clearly

presented, even to the minds of the Swiss themselves.

Under Article XIV., amendment of the Constitution of the United States,

“All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of

the State wherein they reside.” The two methods indicated in which

one may become a citizen of the United States are very simple and

intelligible; first, by birth in the United States;[58] and, second,

by naturalization therein. The only qualification as to either method,

applies to the first, requiring that a citizen by birth must not only

be born within the United States, but he must also be “subject to the

jurisdiction thereof,”--meaning that whole and complete jurisdiction

to which citizens generally are subject, and not any qualified and

partial jurisdiction, such as may consist with allegiance to some

other government. The process of naturalization, whereby one renounces

any foreign allegiance and takes upon himself the obligations of

citizenship, is equally simple, being effected by proceedings

under general laws prescribed by Congress; which is empowered by

the constitution “to establish an uniform rule of naturalization.”

The Fourteenth Amendment, in the clause above quoted, certainly

recognizes that there is a citizenship of the United States, and also

a citizenship of the several States; and that the two coexist in the

same persons. It is no longer possible to conceive of such a status

as citizenship of a State unconnected with citizenship of the United

States, or of citizenship of the United States, with a residence in a

State, unconnected with citizenship of the State. The States cannot

naturalize; the act of naturalization by the United States is the grant

of citizenship within the State where the naturalized person resides.

It is only in the Territories and other places over which the State has

ceded exclusive jurisdiction to the United States that there can be

a citizenship of the United States unconnected with citizenship of a

State. There are in the United States system:

1. The several bodies of electors which compose the several States, in

their character of sovereign and independent political communities,

united as such by the constitution, and which are alone invested with

political rights and charged with political duties.

2. The several bodies of citizens, which compose the several States in

their character of separate civil societies, each of which bodies is

immediately subject to the government and entitled to the protection of

the particular State to which it belongs, but does not necessarily have

a voice or share in the government, state or federal.

3. The common body of citizens of the United States, that is to

say, the citizens of each State and Territory, as “entitled to all

privileges and immunities of citizens in the several States.”

These privileges and immunities have always been construed to mean

such rights and privileges as are in their nature fundamental, such

as belong of right to the citizens of all free governments, such as

at all times have been enjoyed by the citizens of the several States

from the time of their becoming free, sovereign, and independent.

Recognizing the distinction between the inhabitants of a State and

its citizens, Mr. Caleb Cushing defines the latter as the “sovereign,

constituent ingredients of the government.” To the same effect speaks

Mr. Chief-Justice Waite in the United States vs. Cruikshank: “Citizens

are members of the political community to which they belong. They are

the people who compose the community, and who in their associated

capacity have established or submitted themselves to the dominion

of a government for the promotion of their general welfare, and the

protection of their individual as well as their collective rights.”

The political community in a State differs from the civil community; it

is less numerically, but it comprehends special privileges. Membership

therein implies the possession, not only of the civil rights, but of

the privilege of participating in the sovereignty. Whereas membership

in the civil community alone implies merely the possession of the civil

rights,--_i.e._, the rights of personal security, of personal liberty,

and of private property.[59] Under the Articles of Confederation,

the States constituting only a league, citizenship of the so-united

States was a thing inconceivable; accordingly the only citizenship

then possible, as a legal fact, was citizenship of the State. National

citizenship was introduced for the first time by the Constitution of

1787. Still that constitution contained no definition of citizenship

of the United States. Under the provision that “the citizens of each

State shall be entitled to all the privileges and immunities of

citizens in the several States,” a person going from one commonwealth

into another, acquired no other status than that held by the race or

class to which he belonged in the commonwealth into which he went.

The only sense in which a citizenship of the United States existed

was in the provisions where it appears as a qualification for office.

The phrase “citizen of the United States” is employed three times, as

to eligibility for the several positions of President, Senator, and

Representative in Congress. From the adoption of the constitution to

the time of the ratification of the Fourteenth Amendment thereto, the

existence of such a thing as citizenship of the United States, in the

sense of a citizenship independent of the citizenship of the several

States, was hardly admitted. Then citizenship of the United States was

not primary and paramount, but secondary and subordinate; it was only

an incident of State citizenship. Story wrote in his Commentaries: “It

has always been well understood among jurists in this country that the

citizens of each State in the Union are _ipso facto_ citizens of the

United States.” Said Mr. Calhoun, in his speech on the “Force Bill,”

delivered in 1833, “A citizen at large, one whose citizenship extends

to the entire geographical limits of the country without having a local

citizenship in some State or Territory, a sort of citizen of the world,

such a citizen would be a perfect nondescript; not a single individual

of this description can be found in the entire mass of our population.”

Mr. Justice Curtis, in his dissenting opinion in the Dred Scott case,

took the position that citizenship of the United States was dependent

entirely upon citizenship of some one of the several States as such.

Mr. Calhoun and Mr. Curtis agreed that the power of Congress, under the

constitution, “to establish an uniform rule of naturalization,” was

simply the power “to remove the disabilities of foreign birth.” On the

other hand, Mr. Justice Marshall, in 1832, held, in the case of Gassies

vs. Ballon, that a naturalized citizen of the United States, residing

in any State of the Union, was a citizen of that State. Marshall and

Curtis, in their respective views, represented the difference which

obtained between the advocates of State rights and their opponents,

on the question of citizenship of the United States. By the adoption

of the Fourteenth Amendment this was all changed, and is now placed

beyond controversy. The principle is inverted.[60] Citizenship of the

United States now depends in no way upon citizenship in any State or

Territory, but merely upon birth in the United States, coupled with

subjection to the jurisdiction thereof, or upon naturalization. The

term “subject to jurisdiction,” must be construed in the sense in which

the term is used in international law, as accepted in the United States

as well as in Europe; and by this law the children born abroad of

American citizens are regarded as citizens of the United States, with

the right, on reaching full age, to elect one allegiance and repudiate

the other, such election to be final. If the Fourteenth Amendment

furnished an exhaustive and comprehensive definition of citizenship,

such children would not be citizens. That it does not furnish such

definition is intimated by Mr. Justice Miller in the Slaughter-House

cases, and by Mr. Justice Field in his dissenting opinion. In the same

cases it was decided that the privileges and immunities appurtenant

to citizenship of the United States were different and distinct from

those appurtenant to State citizenship; being merely those special and

limited privileges and immunities arising from the special and limited

scope under the constitution of the federal or United States authority.

The theory laid down in the Slaughter-House cases suggests a query as

to the converse. Cannot a person in a substantial sense be a citizen

of a State and at the same time not be a citizen of the United States,

the Fourteenth Amendment to the contrary notwithstanding? Is it not

within the power of a State to grant to an alien, residing within its

limits, all the rights and privileges enjoyed by its native-born or

naturalized citizens, so far as such rights and privileges are under

control of the State?--that is, to naturalize an alien to the extent

of its own exclusive jurisdiction, even to the extent of voting for

United States officials, thus practically making him a member of the

political community in the United States. Said the Supreme Court,

through Chief-Justice Taney, in the Dred Scott case: “We must not

confound the rights of citizenship which a State may confer within its

own limits and the rights of citizenship as a member of the Union;” and

Mr. Pomeroy, in his “Constitutional Law,” writes: “While it is settled

that the Congress of the United States has exclusive authority to make

rules for naturalization, it must not be understood that the States

are deprived of all jurisdiction to legislate respecting the rights

and duties of aliens. They may permit or forbid persons of alien birth

to hold, acquire, or transmit property; to vote at State or national

elections, etc. These capacities do not belong to the United States

citizenship as such.” It is true that the constitution of the United

States makes no one a member of the _political_ body, a capacity which

comes only with citizenship of the State; and therefore it confers

the right to vote upon no one. That right comes even to the “citizens

of the United States,” when they possess it at all, under State laws,

and as a grant of State sovereignty. The amendment, Article XV.,

confers upon citizens of the United States a new exemption; namely,

an exemption from discrimination in elections on account of race,

color, or previous condition of servitude; and to the extent that,

should it be needful to protect this exemption, Congress may provide by

appropriate legislation. The Fifteenth Amendment endows the individual

with the potentiality of enfranchisement, not its actuality, and did

not absolutely make him an elector. It did not deprive the people of

the States of the discretion, in their primary capacity, to decide who

of their number should enjoy the political franchise. It simply forbade

them to adopt a particular rule of discrimination.

The Swiss constitution goes far beyond that of the United States in

dealing with citizenship, and the rights, civil and political, thereto

commonly appertaining. It practically reverses the system as it exists

in the United States. There are no citizens of Switzerland and _ipso

facto_ citizens of the Canton “wherein they reside.” To the contrary,

“every citizen of a Canton,” the constitution declares, “is a Swiss

citizen.” In the words of an eminent Swiss writer, “The national

citizenship proceeds from below.” As to the electoral body, while in

the United States it is determined by the State, within the limitations

of the Fifteenth Amendment, in Switzerland, with the exceptions as to

communal corporate matters, it is fixed by the Confederation in its

organic law, with provisions clear and full. Swiss political active

citizenship is derived from above, proceeding from the Confederation,

and from this source descending to the Canton and the Commune. The

individual once admitted to cantonal citizenship, the Confederation

steps forward and invests him with its nationality, and asserts its

exclusive dominion over him as an elector, declaring he may take part,

in any place where he has acquired residence, in all federal elections

and votes. Coming from any part of the Confederation and taking up his

residence in a Canton, he may, after a residence of three months there,

enjoy in his place of settlement all the rights of a citizen of the

Canton; and with these, also, the rights of a citizen of a Commune,

except as to the common property and corporation. The Confederation,

under the constitution, is charged with fixing, by law, “the limits

within which a Swiss citizen may be deprived of his political rights.”

Swiss citizenship, as defined in the constitution,--“Every citizen of

a Canton is also a Swiss citizen,”--is far from being so accessible

as the simple terms of its definition might imply. It is a difficult,

tedious, and expensive process. As the cantonal citizenship precedes

the federal, so the communal citizenship precedes the cantonal. Every

Swiss citizen must belong to some Commune. He must possess a Commune

of origin, which in French is called “_Bourgeoisie_,” and in German

“_Bürgergemeinde_.” If not obtained by inheritance, then he must

purchase it at what the Commune sees proper to charge; only a few

poorer Communes having free admission, or at least with trifling fees.

The foreigner, seeking Swiss citizenship, must first show that he has

resided in Switzerland during the two years preceding his application,

and that there is nothing in his relations to his native country

that will involve prejudice to the Confederation by his admission to

Swiss citizenship. These conditions being satisfactorily complied

with, he is granted by the Federal Council authority to be received

as a citizen of a Canton and of a Commune; and for which permit he

pays the Confederation thirty-five francs. The Federal Council, with

considerate regard for the serious undertaking of the applicant,

allows two years within which the permit may be used, and if, at

the expiration of that period, it be desired, will renew it upon

the payment of a small additional tax. On receiving the permit the

holder sets out to find communal citizenship, as the first essential

step. This, as described, is practically a matter of purchase. With

this acquired, he must supplement it with cantonal citizenship, and

of that Canton in which the Commune is located, otherwise it is of

no avail. The agreement for communal membership is always predicated

upon the favorable action of a Canton, and the consideration is not

paid until its action is had. The cantonal citizenship is the _pons

asinorum_,--it is the cap-stone, and the most difficult to secure.

The permit from the Federal Council is freely given; the communal

admission a question largely of francs, with some slight inquiry as to

character and condition; but the Canton considers the petition from

a different and higher stand-point. The Canton is not particularly

concerned about the applicant being able-bodied and possessed of those

qualities and conditions which insure contribution from him rather

than distribution to him from the common property of the Commune. The

Canton has regard to whether the applicant will be a desirable citizen,

and not to the material aspects which are paramount with the Commune.

It occurs, not infrequently, that a successful purchaser of communal

membership fails as a petitioner to pass the cantonal ordeal.[61] The

granting of a cantonal or communal naturalization without the previous

approval of the Federal Council is void; and the federal authority to

acquire citizenship is equally futile, until followed up by cantonal

and communal naturalization according to the laws of the Canton. This

involved process that hedges Swiss citizenship, and the cost of its

selection in a desirable Commune, have deterred many foreigners who

have taken up their permanent residence in Switzerland, from making

any attempt for its acquisition. The number of this class at present

is estimated to be nearly ten per cent. of the whole population; and

the Federal Council is considering the policy of amending the law, so

that naturalization may be more easily effected, in order to convert

a great portion of these strangers into Swiss citizens. When Swiss

citizenship is once obtained, by birth or naturalization, it is not

easily lost or set aside. In this the federal constitution determines

the conduct of the Canton, and does not permit it “to banish one

of its citizens from its territory, or deprive him of the right of

citizenship.” The “right of township or origin,” the highest and

firmest right of citizenship, is a sacred and imprescriptible right,

which the constitution places above any power to take away or impair.

By virtue of the constitutional authority of the Confederation, “to

fix the conditions upon which foreigners may be naturalized, as well

as those upon which a Swiss may give up his citizenship in order

to obtain naturalization in a foreign country,” a federal law was

enacted in 1876. It provides that “a Swiss citizen may renounce his

citizenship if he has no domicile in Switzerland, and if he is enjoying

fully all civil rights according to the laws of the country where

he resides, and that he has already acquired citizenship in another

country, or the assurance of its being granted for himself, his wife,

and minor children. The declaration of renunciation is to be submitted

in writing, accompanied by the required statement, to the cantonal

government, which will notify the respective communal authorities,

in order to inform such parties as are interested, and a term of

four weeks is fixed for presenting objections.” The Federal Tribunal

decides in such cases, where objection is made to the renunciation;

and in event of no objection being made, or if made and judicially

overruled, then the discharge from cantonal and communal citizenship

is pronounced and entered on record. This discharge includes Swiss

citizenship or denationalization, and dates from its issue and delivery

to the applicant; it also extends to the wife and minor children, when

they are domiciled or living together, and if no special exceptions

be made in regard to them. The widow or the divorced wife of a Swiss

citizen, who has renounced his nationality, and such children of a

former Swiss citizen, as were minors at the time of such renunciation,

may request of the Federal Council to be readmitted as citizens.

This privilege will not be granted to the widow or divorced wife,

unless the application be made within ten years after the dissolution

of the marriage; nor to the children, unless made within ten years

after attaining their majority. After the expiration of these

periods, the parties in either case must acquire citizenship in the

manner prescribed for aliens. The substance, indeed, the identical

phraseology, of this law was anticipated by the Federal Council in

its answer, made in 1868, to an appeal from the British government,

relating to expatriation and naturalization. The Council closed its

answer in these words: “The right of Swiss citizenship ceases only

with the death or by the voluntary renunciation, by the person who

possesses it, of his cantonal and communal right of citizenship, and by

the release which a competent authority, cantonal and communal, gives

him. But this emancipation from the ties which bind him to the state

is not granted until the proof exists, in due form, of the acquisition

of citizenship in a foreign country.” It is manifest that the entrance

to and exit from Swiss citizenship is by no means through a broad and

open door. The firm tie which binds him with “hoops of steel” to his

country is not loosed by the mere acquisition of citizenship in another

country; but proof must be submitted that he was under no disability

at the time of doing so, and that he is in the full enjoyment of all

the civil rights of his adopted country. In the event of a member of a

Commune moving to another Canton, who does not thereby divest himself

of his original communal citizenship, and fails to secure membership in

the Commune where he settles (for one may become a member of several

Communes), he assumes a citizenship of a twofold nature, and therefore,

as explained in the chapter on “Communes,” there exist in many Communes

two governments,--a citizens’ government and a political government,

distinguished as the community of citizens and the community of

inhabitants or settlers. This principle also results in a dual national

citizenship, and consequently conflicting claims of correlative rights

and duties. To provide against embarrassing contingencies that might

arise from this situation on the part of Swiss who have acquired

citizenship in a foreign state,--without the required formal and

expressed voluntary declaration of renunciation, with its equally

formal and expressed acceptance to render it valid,--the federal law of

1846 declares that “persons who, in addition to Swiss citizenship, are

citizens of a foreign country, are not entitled to the privileges and

the protection accorded to Swiss citizens, during their residence in

such a foreign state.”